Amicus Curiae Brief — Providence Hospital v. Moses

No. 09-438

$n the Supreme Court of the Gnited States

YIHNELLA RICHNA

REPRESENTA

VIARIE MO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAI

QUESTIONS PRESENTED

The kkmergency Medical Treatment and Labor Act

(i; M'TALA), 42 U.S.C, 1395dd, requires a hospital with

an emergency department that participates in the Medi

care program to provide “an appropriate medical!

screening examination” to any individual who “comes to

the emergency department” of the hospital to determine

whetker that individual has an “emergency medical con

dition.” 42 U.S.C. 13895dd(a). In addition, if any individ

ual “comes to a hospital” with an “emergency medical

condition,” the hospital is required either to provide “for

such further medical examination and such treatment as

may be required to stabilize the medical condition,” or

to transfer that individual to another hospital in accor

dance with certain statutory conditions 12 U.S.C

1395dd(b) and (c). The questions presented are

1. Whether EMTALA’s coverage terminates upon

the hospital’s good faith admission as an inpatient of an

individual with an emergency medical condition

» Whether a 20038 regulation promulgated by the

Department of Health and Human Services that clarifie

the scope ola participating hospital's obligations under

EMTALA may be applied to conduct occurring prior to

| | sUuUAaANCe

TABLE OF CONTENTS

Statement

continue once an individual has been admitted in

good faith as a hospital inpatient

Further review is not warranted at this time

The retroactivity issue does not independently

warrant this Court’s review

( onelusion

TABLE OF AUTHORITIES

Alvarez-Torres v. Ryder Mem Hosp., Inc

D82 F.3d 47 (ist Cir. 2009)

Bryan V. Rectors & Visitors O} the

95 F.3d 349 (Ath Cir. 1996)

Bryant v. Adventist Health Sys./\

(9th Cir. 2002)

Chevron U.S.A., Inc. v. Natural Res Def. Co

Ine., 467 U.S. 837 (1984)

Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002)

James v. Sunrise Hosp., 86 F.3d 885 (9th Cir. 1996)

/ opez-sote v. fla vauek, 175 F.3d 170 (1st Cir.

1999)

Major Le Gwe Baseball Play ys

532 U.S. 504 (2001)

Morgan v. North Miss. Med. Ctr., Inc., 22!

Appx. 828 (1ith Cir. 2007), cert. deni

1098 (2008)

‘ases—Continued:

Roberts v. Galen of Va. Inc., 525 U.S. 249 (1999)...

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996)

Smith v. Richmond Mem Hosp., 416 8.E.2d 689

(Va. 1992)

Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d

1132 (8th Cir. 1996)

Thorton v. Southwest Detrort Hosp.,

(6th Cir. 1990)

Torretti v. Main Liane Hosp., Ine., 5:

3d Cir. 2009)

Statutes and regulations:

Emergency Medical Treatment and Labor Act,

12 U.S.C. 13895dd (Consolidated Omnibus Budget

Reconciliation Act of 1985)

S.C. 1395dd(a)

S.C. 1395dd(b) ....

S.C. 13895dd(b)(1)

». I895dd(e)1) .

». 13895dd(c)(1)(A)

CO. 1395dd(e)(1 (A) (i

». 13895dd(¢)(1 (A) (Ci)

’. 1395dd(ce)(1){B)

395dd(ce)(2)

S9ddd(d)(1)....

>. L395dd(d)(1)(A)

°. 1895dd(d){2)(A)

1395dd(d)\(2(C

Statutes and regulations—Continued:

. 1895dd(eMl)..........

J. 1895dd(e)(1)(A)

C. 1395dd(e)(2)

. 1395dd(e)(3) . . .

OM

2 U.S.C. 1395dd(e)(3)(B) ..

U. 395dd(e)(4)

Medicare and Medicaid Budget Reconciliation

Amendments of 1985, Pub. L. No. 99-272,

§ 9121(b), 100 Stat. 164 ...

12 U.S.C. 1302(a)

42 U.S.C. 1320a-Ta

42 U.S.C. 1SS6nntaw

Section 482.48

Section 489.24(a){i1)

Section 489.24(b)

Section 489.24(d)(2)

Section 489.24(d)(2)Q)

Section 489.24(d)(2)(iii)

Visecellaneous:

131 Cong. Rec. (1985):

p 28 56S

p. 28,069

p. 29,829

od Fed. Reg. 22,517 (1988)

59 Fed. Reg. 32,092 (1994)

Miscellaneous—Continued

67 Fed. Reg. (2002)

p. 31,475

pp. 31,475-31,476

68 Fed. Reg. (2003):

p. 53,245

73 Fed. Reg. (2008)

p. 48 656

pp. 48,656-48,661

p. 48,659

p. 45,661

H.R. Rep. No. 241, 99th Cong., Ist Sess

{ | QX45 }

Jn the Supreme Court of the Anited States

No. 09-438

PROVIDENCE Hi ISPITAL, ET AL., PETITIONERS

Uv.

JOHNELLA RICHMOND MOSES, PERSONAL

REPRESENTATIVE OF THE ESTATE OF

MARIE MOSES-IRONS, DECEASED

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the order of

this Court inviting the Solicitor General to express the

views of the United States. In the view of the United

States, the petition for a writ of certiorari should be de-

nied.

STATEMENT

|. The Emergency Medical Treatment and [Iabor

Act (EMTALA or Act), 42 U.S.C. 1395dd, was originally

enacted in 1986 as part of the Consolidated Omnibus

Budget Reconciliation Act of i985. Medicare and Medi-

eaid Budget Reconciliation Amendments of 1985, Pub. L.

No. 99-272, § 9121(b), 100 Stat. 164. Congress was re-

sponding to “a growing concern about the provision of

adequate emergency room medical services to individu-

fay

als who seek care, particularly as to the indigent and

uninsured.” H.R. Rep. No. 241, 99th Cong., Ist Sess.

Pt. 3, 5 (1985) (1985 House Report). The Act was pri-

marily designed to address “patient dumping,” the prac-

tice of turning away or transferring indigent patients

without evaluation or treatment. See Harry v.

Marchant, 291 F.3d 767, 772-773 (11th Cir. 2002); Sam-

mers Vv. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132,

1136 (8th Cir. 1996) (en bane).

Ki MTALA imposes two principal obligations on hos-

pitals with emergency departments that have entered

into Medicare provider agreements with the Secretary

of Health and Human Services (HHS). 42 U.S.C.

1395dd(e)(2). First, when “any individual” “comes to the

emergency department” of a participating hospital and

a request is made on the individual’s behalf for examina-

tion or treatment for a medical condition, the Act re-

quires the hospital to provide “an appropriate medical

screening examination within the capability of the hospi-

tal’s emergency department, including ancillary services

routinely available to the emergency department, to

determine whether or not an emergency medical condi-

tion * * * exists.” 42 U.S.C. 13895dd(a); see 42 C.F.R.

489.24(b) (The phrase “|c]omes to the emergency depart-

ment” means, ivter alia, that an individual presents at

the “dedicated emergency department” and requests

examination and treatment for a “medical condition,” or

presents “on hospital property” and requests examina-

tion and treatment for an “emergency medical condi-

tion.”).

Second, if a participating hospital determines that an

individual who “comes to a hospital” is suffering from an

emergency medical condition, the hospital must either

(A) “within the staff and facilities available at the hospi-

tal,” provide “for such further medical examination and

such treatment as may be required to stabilize the medi-

al condition,” or (B) transfer the individual to another

hospital in accordance with the provisions of Subsection

(c), 42 U.S.C. 13895dd(b)(1). Subsection (c) states that,

“{ilf an individual at a hospital has an emergency medi-

2-al condition which has not been stabilized|,| * * * the

hospital may not transfer the individual unless” (i) the

individual (or a legally responsible person acting on the

individual’s behalf) makes an informed, written request

to be transferred; (1) a physician has signed a certifica-

tion that the medical benefits outweigh tlie risks of the

transfer; or (ill) “if a physician is not physically present

in the emergency department at the time an individual

is transferred,” a qualified medical person, in consulta-

tion with a physician, has made the required risk/benefit

determination. 42 U.S.C. 1395dd(e)(1)(A).'

The phrase “emergency medical condition” is defined

as a condition “manifesting itself by acute symptoms of

sufficient severity * * * such that the ahsence of im-

mediate medical attention could reasonably be expected

toresultin * * * serious jeopardy |to the health of the

individual or her unborn child], * * * serious impair-

ment to bodily functions, or * * * serious dysfunction

of any bodily organ or part.” 42 U.S.C. 1895dd(e)(1)(A).

The term “to stabilize” means “to provide such medical

treatment of the [emergency medical] condition as may

be necessary to assure, within reasonable medical prob-

' The transfer must also be an “appropriate transfer,” 42 U.S.C.

1395dd(¢)(1)(B), which means that the receiving hospital must agree to

accept the transfer and to provide appropriate medical treatment, and

the sending hospital must forward al] relevant medical records, provide

qualified personnel for the transfer, and take actions to minimize the

risk of transfer, 42 U.S.C. 1395dd(¢)(2).

ability, that no material deterioration of the condition is

likely to result from or occur during the transfer of the

individual from a facility.” 42 U.S.C. 1395dd(e)(3)(A);

see 42 U.S.C. 1895dd(e)(3)(B) (similar definition of “sta-

bilized”). And the Act defines “transfer” as “the move-

ment (including the discharge) of an individual outside

a hospital’s facilities.” 42 U.S.C. 1395dd(e)(4).

EMTALA confers a private right of action on “la]ny

individual who suffers personal harm as a direct result

of a participating hospital’s violation of a requirement of

IEMTALA].” 42 U.S.C. 1895dd(d)(2)(A) (permitting

recovery of amount of “damages available for personal

injury under the law of the State in which the hospital is

located”). The Secretary of HHS may also impose civil

monetary penalties on participating hospitals and on

physicians for negligent violations of the Act. 42 U.S.C.

1395dd(d)(1).

2. In May 2002, the Centers for Medicare & Medi

caid Services (CMS), within HHS, published a proposed

rule to clarify, among other things, an issue that had

“occasionally” been raised regarding whether EMTALA

applied to individuals admitted to a hospital as inpa-

tients. See 67 Fed. Reg. 31,475; see also Roberts v. Gal-

en of Va., Ine., 525 U.S. 249 (1999) (No. 97-53), 12/1/98

Tr. of Oral Argument at 20-21 (advising the Court that

HHS was planning to engage in rulemaking on that

question). The proposal was that EMTALA “would ap-

ply to inpatients only under limited circumstances”

namely, it would cover an individual who initially

“come[s| to the emergency room” requesting care for an

emergency medical condition, is admitted as an inpatient

before that condition is “stabilized,” and is not thereat-

ter “stabilized” in any non-transient manner prior to

transfer. 67 Fed. Reg. at 31,475. The proposed rule

would have further clarified that, except for these “lim

ited circumstances,” “EMTALA does not apply to hospi-

tal inpatients.” Jbid. The agency expressed concern

that “permitting inpatient admission to end EMTALA

obligations would provide an obvious means of circum-

venting” the Act’s requirements, but also noted that,

although “the legislative history of EMTALA is replete

with references to the problem of individuals denied

emergency medical care at hospital emergency rooms,

* * * there is no explicit reference to similar problems

faced by hospital inpatients.” /bid.°

Following the receipt of comments, in September

2003, CMS promulgated a final rule “interpreting hospi-

tal obligations under EMTALA as ending once the indi

viduals are admitted to the hospital [for] inpatient care,”

unless the hospital admission was not in “good faith with

the intention of providing treatment.” 68 Fed. Reg.

53,244-53,245. The agency explained that several courts

of appeals had interpreted EMTALA’s obligations as

ending upon admission, and that state law remedies and

the conditions of participation for a hospital’s participa-

tion in Medicare provided adequate means to protect

inpatients. /d. at 53,245.

The adopted regulation thus provides that a hospital

satisfies EMTALA’s requirements with respect to an

individual found to have an emergency medical condition

if it “admits that individual as an inpatient in good faith

The proposed rule was consistent with a view expressed in the pr‘

amble to an earlier version of the regulations, in which the agency inter

preted the stabilization requirement “to mean, for example, that if a

hospital were to admit and then transfer a patient before his or her

condition is stabilized * f{ EMTALA.” 53

Fed. Reg. 22,517 (1988) (proposed rule); see 59 Fed. Reg. 32,092 (1994)

(summarizing proposed rule)

* it would be a violation 0

()

in order to stabilize the emergency medical condition.’

42 C.F.R. 489.24(d)(2)(i); see 42 C.F .R. 489.24(a)(ii) (“Tf

the hospital admits the individual as an inpatient for

further treatment, the hospital’s obligation under thi

section ends, as specified in paragraph (d)(2) of this see

tion.”’); ef. 42 C.F.R. 489.24(d)(2)Qi1) (A hospital is re

quired by the conditions of participation for hospital;

under Part 482 of this chapter to provide care to its in

patients in accordance with those conditions of participa

tion.”). The regulation defines “inpatient” as “an indi

vidual who is admitted to a hospital for bed occupancy

* with the expectation that he or she will remain at

least overnight.” 42 C.F.R. 489.24(b)."

3. On December 13, 2002, Marie Moses-Iron:

brought her husband, Christopher Howard, to the emer

gency department of petitioner Providence Hospital.

Pet. App. 3a. Howard’s symptoms included severe head

aches, musele soreness, high blood pressure, vomiting,

slurred speech, disorientation, hallucinations, and delu

sions. /bid. Emergency room physicians admitted How

ard as an inpatient to conduct more tests. /b7d. He was

ultimately diagnosed with a migraine headache and

atypical psychosis with delusional disorder and, al

though there allegedly were plans to transter Howard to

the psychiatric unit, he was released from the hospital!

In 2008, HHS examined whether MKMTALA’s “specialized care’

provisions would require hospitals with specialized capabilities to accept

the transfer of an individual who was an inpatient at the admitting

hospital. See 73 Fed. Reg. 48,656-48,661. The agency ultimately clari

fied that “once an individual is admitted in good faith by the admitting

hospital, the admitting hospital has satisiied its EMTALA obligation

with respect to that individual even if the individual remains unstat

ilized[,] and a hospital with specialized capabilities does not have

Kk MTALA obligation to accept an appropriate transfer of that individ

ual.”” /d. at 48,66)

on December 19, 2002. /d. at 4a-5a

Howard murdered his wife. /d. at 5a.

In 2004, the representative of Moses-lron’s estat

commenced this suit against petitioner alleging a viola

tion of KM’TALA and state law negligence claims. Pet

App. 5a." Petitioner filed a motion to dismiss, arguing,

unter alia, that respondent lacked standing to bring an

KM‘ ALA claim because she was not the individual who

had sought treatment from the hospital. /béid. The di:

trict court denied that motion, concluding that “the plain

language of the statute does not preclude a lawsuit by

the injured third party.” /bid. (quoting C.A. App. 181)

Petitioner then moved for summary judgment, again

challenging respondent’s standing and asserting two

other grounds: (1) HMTALA does not impose any obli

gations on a hospital once an individual is admitted as an

inpatient, and (2) there was no EMTALA violation be

cause [loward was properly screened and was not diag

nosec as having an emergency medical condition. Pet.

App. 6a, 10a. The district court granted summary judg

ment to petitioner because, “regardless of the standing

issue,” “[t}he hospital admitted Howard and did not turn

him away” and, after a proper screening, the hospital

did not recognize an “emergency medical condition.” /d

at 7a (quoting C.A. App. 216). The court declined to ex

ercise supplemental jurisdiction over respondent’s state

law claims. /d. at 7a.

1. The court of appeals reversed and remanded for

further proceedings. Pet. App. la-28a. As an initial

matter, the court agreed that respondent had standing

to sue under EMTALA because, the court explained, the

Che complaint also named an individual physician as «a defendant

but the physician was dismissed, Pet. App. Z6a-2Sa, and is not a pet

tioner betore this Court

}

plain language of the statute broadly confers a private

right of action on “any individual who sulfers persona!

s violation. /d. at

harm as a direct result” of the hospital!

10a-15a (emphasis added)

‘The court then held that “E.M’TALA imposes an obli

gation on a hospital beyond simply admitting a patient

with an emergency medical condition to an inpatient

care unit.” Pet. App. l6a. Reasoning that EMTALA

“requires ‘such treatment as may be required to stabi

lize the medical condition,’ §& 18395dd(b). and forbids the

patient's release unless his condition has ‘been stabi

lized,’ § 1895dd(e)qQ1),” the court coneluded that

“EMTALA requires a hospital to treat a patient with an

emergency condition in such a way that, upon the pa

tient’s release, no further deterioration of the condition

is likely.” /dbid.; see rd. at 17a (“Thus, the statute re

quires more than the admission and further testing of a

patient; it requires that actual care, or treatment, be

provided as well.”).

The court refused to defer to HHS’s regulation pro

viding that a hospital’s EMTALA obligations are satis

fied upon the good faith admission of the individual as

an inpatient, finding the regulation “contrary to

KE MTALA’s plain language.” Pet. App. 18a. The court

thought it “unreasonable” to treat admission, in and of

itself, as the equivalent of the “treatment as may be re

quired to stabilize” that the Act requires. /bid. In the

alternative, the court concluded that it would be inap

propriate to apply HHS’s interpretation here becausi

the regulation was promulgated after the conduct at

issue in this case. /d. at 19a.

Finally, the court of appeals held that whether the

hospital conducted an appropriate screening and found

no emergency medical condition, and whether the hospi

tal believed Howard was stabilized upon discharge,

raised disputed issues of fact for the jury to decide. See

Pet. App. 20a-26a

5. The court of appeals denied rehearing en ban

with one judge dissenting. Pet. App. 34a-36a

DISCUSSION

The court of appeals erred in holding that

IeMTALA’s coverage unambiguously continues after an

individual has been admitted in good faith to the hospital

as an inpatient Congress did not speak directly to this

issue, and HHS is entitled to deference as the expert

agency. Nonetheless, review is not warranted at this

time. The conflict among the circuits is shallow, HHS

has committed to initiating rulemaking to reconsider

this issue in the coming year, and the case is In an inter

locutory posture and is atypical in several respects that

further weigh against review. The Court therefore

should deny the petition for a writ of certiorari.

4. EMTALA’s Coverage Does Not Unambiguously Con-

tinue Once An Individual Has Been Admitted In Good

faith As A Hospital Inpatient

The familiar two-step framework established by

Chevron U.S.A., Ine. v. Natural Resources Defense

Council, Inuc., 467 U.S. 837, 842-845 (1984), governs this

case. At the first step, a court asks “whether Congress

has directly spoken to the precise question at issue”; if

Congress has unambiguously expressed its intent, the

court must give effect to that intent. /hbid. If the statute

is silent or ambiguous, however, the court must deter

mine “whether the agency's answer is based on a per

missible construction of the statute.” /d. at 848. Con

gress did not directly answer the question presented in

this case—but in a 2005 regulation promulgated after

LO

notice and comment HHS did. The court of appeals

should have deferred to the agency’s “permissible con-

struction of the statute.” /bid.

1. The statutory text does not unambiguously pro-

vide that EMTALA’s coverage continues after an Indl

vidual is admitted to the hospital as an inpatient. To be

sure, nothing in Subsection (b) expressly states that

KE MTALA’s requirements are satisfied upon admission

to the hospital as an inpatient. But there is also no ex-

press statement that coverage will continue indefinitely,

beyond appropriate screening and treatment in the

emergency room.

a. On the one hand, Subsection (b) is written in ex-

pansive terms. It refers to any individual who “comes to

a hospital” and is determined to have an “emergency

medical condition.” 42 U.S.C. 1395dd(b)(1). It then

states that the hospital must either (A) provide, “within

the staff and facilities available at the hospital, for such

further medical examination and such treatment as

may be required to stabilize the medical condition,” or

(B) transfer the individual in accordance with Subsec-

tion (c). bed. And the Act measures stabilization under

Subsection (b) by whether the condition will deteriorate

if the individual is moved “from a facility” or “outside a

hospital’s facilities,” 42 U.S.C. 13895dd(e)(3) and (4). In

contrast, the medical screening requirement in Subsec-

tion (a) refers to any individual who “comes to the emer-

gency department” and requires the hospital to provide

an examination “within the capability of the hospital’s

emergency department, including ancillary services rou-

tinely available to the emergency department.”

42 U.S.C. 1895dd(a). As respondent argues (Br. in Opp.

10), the references to the “emergency department” in

Subsection (a) compared to the absence of any such

mention in Subsection (b), or in the definitions of “to

stabilize” or “transfer,” could suggest that the stabiliza-

tion requirement applies to the treatment of “emergency

medical conditions,” whether or not they exist in the

“amergency department.” See Thorton v. Southwest

Detroit Hosp., 895 F.2d 11381, 1184 (6th Cir. 1990)

(“{T]his change in wording” leads to a “reasonable infer-

ence” that the stabilization requirement applies “re

gardless of whether the patient stays in the emergency

room.’).

On the other hand, Subsection (b) permits a hospital

to transfer an individual before he is. stabilized

only in accordance with Subsection (¢c)—.e., only if,

inter alia, a physician signs a certification attesting to

the risks and benefits of the transfer. 42 U.S.C.

1395dd(e)(1)(A)Gi). And it further provides an alterna-

tive way of effectuating an appropriate transfer if a

“physician is not physieally present in the emergency

department” at that time. 42 U.S.C. 1895dd(¢)()(A)(i1).

Congress’s decision to condition transfers on whether a

physician is physically present in the emergency depart-

ment could indicate that “it meant to be speaking in sub

secuion (c) about decisions to be made in the emergency

room.” See James v. Sunrise Housp., 86 F.3d 885, 889

(9th Cir. 1996). But see Lopez-Soto v. Hawayek, 175

F.3d 170, 176 (1st Cir. 1999) (rejecting that reading and

arguing that “the provision addresses only a discrete

subset of transfer circumstances,” whereas the more

generally applicable provision does not impose “any lim-

itation on where certification decisions must be made”).

In other respects, the stabilization requirement can

be read as one that ts limited in duration. For example,

it is keyed to the identification of an “emergency medical

condition,” which is defined as a condition manifesting

7

itself by “acute symptoms” requiring “immediate medi-

cal attention.” 42 U.S.C. 13895dd(e)(1). Those words

connote a sense of imminence and urgency that is in

some tension with an ongoing stabilization obligation of

indefinite duration. The Act also includes protections

for women in labor and defines “to stabilize” in that con-

text as “to deliver (including the placenta).” 42 U.S.C.

1395dd(e)(3). This could suggest that EMTALA was

intended to apply to inpatients, because Congress in-

tended to cover pregnant women until “delivery,” which

could occur after admission to the maternity ward. Cf.

Lopez-Soto, 175 F.3d at 176-177. But EMTALA’s inelu-

sion of pregnant women in labor imposes an obligation

on the hospital that is inherently limited in duration; it

does not suggest that Congress necessarily envisioned

that the Act would govern the hospital’s actions on an

open-ended basis.

b. Asa general matter, EMTALA’s legislative his-

tory makes clear that Congress was primarily focused

on the problem of hospitals dumping indigent and unin-

sured individuals from hospital emergency rooms. See,

e.g., 1985 House Report, Pt. 1, at 27 (“The Committee is

greatly concerned about the increasing number of re-

ports that hospital emergency rooms are refusing to

accept or treat patients with emergency conditions if the

patient does not have medical insurance.”); 1985 House

Report, Pt. 3, at 6 (“The Judiciary Committee shares the

concern of the Ways and Means Committee that appro-

priate emergency room care be provided.”); 131 Cong.

Ree. 28,568 (1985) (Sen. Durenberger); td. at 28,569

(Sen. Kennedy); 2b2d. (Sen. Heinz).

[In discussing the EMTALA obligations more specifi-

cally, including the stabilization requirement, the legis-

lative history at times suggests a focus on treatment

provided within the emergency department. For exam-

ple, the report of the House Ways and Means Commit

tee described the stabilization obligation as requiring

“hospital emergency departments” to “provide appropri

ate treatment to stabilize patients who have emergency

medical conditions or to provide treatment for patients

in active labor, and provide for appropriate transfers.”

1985 House Report, Pt. 1, at 4; see 131 Cong. Rec. 29,829

(1985) (Sen. Stark). During Senate floor debates, at

least one Senator’s comments suggested that the obliga-

tions imposed by EMTALA were intended to have a

temporal limit. See zd. at 28,569 (Sen. Dole) (“Under the

provision[s] of this amendment, a hospital is charged

only with the responsibility of providing an adequate

first response to a medical crisis.”) (emphases added);

see also ibid. (Sen. Dole) (describing patient dumping as

a practice “whereby a hospital, for purely financial rea-

sons, refuses to initially treat or stabilize an individual

with a true medical emergency”) (emphasis added). But

while Congress’s primary focus was on patient dumping

from hospital emergency rooms, the legislative history

also suggests a more inclusive belief that “all Americans,

regardless of wealth or status, should know that a hospi-

tal will provide what services it can when they are truly

in physical distress.” /d. at 28,568 (Sen. Durenberger).

c. In sum, a review of the statutory text, structure,

and purpose of EMTALA reveals that Congress did not

speak “directly * * * tothe precise question at issue.”

Chevron, 467 U.S. at 842. The court of appeals therefore

erred when it concluded that EMTALA’s coverage un

ambiguously continues after an individual has been ad-

mitted as a hospital inpatient. See Pet. App. 16a-19a.

Nor does the legislative history suggest that Congress

14

clearly intended that EMTALA’s coverage would con-

tinue after admission as an inpatient.

2. Congress has expressly authorized the Secretary

of HHS to promulgate rules and regulations interpret

ing and implementing EMTALA, see 42 U.S.C. 1302(a);

1395hh(a)(1), and to administer the civil monetary fine

provisions of EMTALA, see 42 U.S.C. 13895dd(d)(1)(A)

and (B) (ineorporating 42 U.S.C. 1320a-7a). Accord-

ingly, as the court of appeals recognized (Pet. App. 18a-

19a), the Secretary’s regulations, adopted after notice

and comment, are entitled to Chevron deference.

In 2003, HHS promulgated a final rule clarifying that

a hospital’s obligations under EMTALA are satisfied

onee it “admits [an] individual as an inpatient in good

faith in order to stabilize the emergency medical condi-

tion.” 42 C.F.R. 489.24(d)(2); see 42 C.F.R. 489.24(a)(ii);

see also 73 Fed. Reg. 48,659 (2008) (clarifying “that if an

individual presents to the admitting hospital that has a

dedicated emergency department, is provided an appro-

priate medical screening examination and is found to

have an emergency medical condition, and is admitted as

an inpatient in good faith for stabilizing treatment of an

emergency medical condition, then the admitting hospi-

tal has met its EMTALA obligation to that individual,

even if the individual remains unstable”).

For all the reasons explained above, that interpreta-

tion is a reasonable one. Although it is not the only per-

missible reading, the HHS regulation is consistent with

the text, structure, purpose, and history of EMTALA,

and the court of appeals should have given it “control-

ling weight.” Chevron, 467 U.S. at 844.

B. Further Review Is Not Warranted At This Time

1. Before the HHS regulation was promulgated,

three courts of appeals, including the Sixth Circuit in

dicta, had addressed the question presented. No other

court of appeals has examined this question in light of

the current regulation.’ The circuit split is relatively

shallow and further percolation is warranted.

In Thorton, 895 F.2d at 1135, the Sixth Circuit re

viewed EMTALA’s text and legislative history and

stated that “[e|mergency care must be given until the

patient’s emergency medical condition is stabilized.”

The court found it significant that Subsection (a) refers

to the “emergency department” on several occasions,

whereas Subsection (b) refers to the “hospital.” /d. at

1134. Looking to the legislative history, the court ex-

plained that Congress sought to ensure that emergency

care is provided and, “[a]llthough emergency care often

oceurs, and almost invariably begins, in an emergency

room, emergency care does not always stop when a pa-

tient is wheeled from the emergency room into the main

hospital.” /d. at 1135. Because the plaintiff's condition

had been stabilized at the time of her discharge, how-

ever, the court affirmed the dismissal of the case. The

Sixth Circuit’s discussion of EMTALA’s coverage in

Thorton therefore appears to have been dictum.

Several years later, in Bryan v. Rectors and Visitors

of the University of Virginia, 95 F.3d 349 (1996), the

[Fourth Circuit held, contrary to the Sixth Circuit’s view

in Thorton, that the EMTALA stabilization requirement

applies only “in the immediate aftermath of the act of

In Torrett: v. Main Line Hospital, Inc., 580 F.3d 168, 175-176

(2009), the Third Circuit examined and deterred to the HHS regulation

with respect to outpatients.

16

admitting” and while the hospital “consider|s] whether

it [will] undertake longer-term full treatment or instead

transfer the patient to a hospital” that will do so. /d. at

352. The court viewed EMTALA as a “limited ‘anti-

dumping’ statute, not a federal malpractice statute,”

that has the “sole purpose” of “dealling| with the prob-

lem of patients being turned away from emergency

rooms for non-medical reasons.” Jd. at 351. Once the

hospital accepts the patient, the court reasoned, the pa-

tient’s care becomes the legal responsibility of the hospi-

tal and is governed by state tort law. /d. at 351-352.

The court also found support for its interpretation in the

statutory phrase “to stabilize” which, the court ex-

plained, is defined “entirely in connection with a possible

transfer and without any reference to the patient’s long-

term care within the system.” /d. at 352.

In 2002, shorily before the HHS regulation was pro-

mulgated, the Ninth Circuit held that “the stabilization

requirement normally ends when a patient is admitted

for inpatient care.” Bryant v. Adventist Health Sys./W.,

289 F.3d 1162, 1167. The court acknowledged that the

term “‘stabilize’ appears to reach a patient’s care after

the patient is admitted to the hospital for treatment,”

but it explained that “the term is defined only in connec-

tion with the transfer of an emergency room patient.”

Ibid. While recognizing the concerns raised by the Sixth

Circuit in 7horton, the court ultimately agreed with the

Fourth Cireuit, holding that “EMTALA’s stabilization

requirement ends when an individual is admitted for

inpatient care,” unless “a patient demonstrates in a par-

ticular case that inpatient admission was a ruse to avoid

EMTALA’s requirements.” /d. at 1168-1169; see also

Morgan v. North Miss. Med. Ctr., Inec., 225 Fed. Appx

$28 (11th Cir. 2007) (affirming, without opinion, district

17

court decision adopting Bryant rule), cert. denied, 552

U.S. 1098 (2008).°

The Sixth Circuit in this case adopted the dictum

from its prior decision in Thorton as a holding, despite

HHS’s promulgation of its regulation in the interim.

And it did so without citing the conflicting decisions in

the Fourth and Ninth Circuits.’

As respondent argues (Br. in Opp. 7-8), the underlying facts in both

Bryan and Bryant are distinct in at least one respect: the patients did

not allege an inappropriate “transfer,” as that term is defined in

KiM'TALA. In Bryan, there was no transfer at all; the individual died

while a patient in the admitting hospital. See 95 F.3d at 350; 42 U.S.C.

1395dd(e)(4) (defining “transfer” as excluding the movement of a

person declared dead). And in Bryant there was no allegation that the

transfer itself violated EMTALA. See 289 F.3d at 1164. As noted

above, both courts relied, in part, on the fact that the stabilization

requirement is keyed to a “transfer,” and some courts have held that

kiM'TALA’s stabilization requirement is not triggered unless there has

been such a transfer. See p.17 n.7, nfra. Neither court, however

rested on that rationale as the basis for its decision.

The First and Eleventh Circuits have also addressed the scope of

ky MTALA’s stabilization requirement, but have not squarely decided

the question presented here. Both courts have relied on the definition

of “to stabilize” to hold that “a hospital cannot violate the duty to

stabilize unless it transfers [the] patient.” Adlvarez-Torres v. Ryder

Mem'l Hosp., Ine. , 582 F.3d 47, 51-53 (1st Cir. 2009) (explaining that the

definition of “to stabilize” shows that “the duty to stabilize attache

when a hospital transfers a patient” and does not “create a duty of care

for medical services provided while a patient remains in the hospital”);

Harryv. Marchant, 291 F.3d 767, 771 (11th Cir. 2002) de M'TALA “does

not set forth guidelines for the care and treatment of patients who are

not transferred.”); ef. 7d. at 775 (Barkett, J., concurring) (“agree[ing]”

with the majority that because the plaintiff “was admitted as a patient,

redress” is not available under FMTALA). The First Circuit has also

held that the stabilization requirement attaches regardless of where in

the hospital a patient first presents with an emergency medical condi

tion. See Lopez-Soto, 175 F.3d at 172-177; ed. at 177 n.4 (declining t

1&

2. The relatively shallow circuit split does not war-

rant the Court’s review at this time. HHS has informed

this Office that it is committed to initiating a rulemaking

process that will reconsider the policy articulated in its

2003 regulation. Snecifically, HHS is committed to pro-

nulgating a request for comment in 2010 and a notice of

proposed rulemaking in 2011. In these circumstances,

the Court should not grant review to address the same

question.

Interpreting EMTALA to extend beyond the emer

gency department, as the court of appeals did, raises

other questions not answered by Congress and best

suited for expert agency consideration. For example,

when HHS proposed in 2002 to extend EMTALA’s cov

erage to some inpatients, it did not propose to extend it

to ald inpatients. See 67 Fed. Reg. at 31,475-31,476; see

sr. in Opp. 10 (arguing that the statutory text does not

“readily lend itself’ to the conclusion that the Act has

“no application whatsoever once a patient is admitted to

the hospital”). Thus, if EMTALA’s coverage were to

extend in some circumstances beyond the point of ad-

mission as an inpatient, a further question would arise:

would EMTALA’s coverage be of open-ended duration,

or would there be some temporal limitation apart from

the point of admission? Cf. 42 U.S.C. 13895dd(e)(3) and

(4) (defining “to stabilize” as requiring the hospital to

address the temporal limitations of such a requirement and pointing to

the Fourth Circuit's decision in Bryan as an example of a way in which

courts have “cabin[ed] such undue expansion of EMTALA into the ma]

practice realm”); cf. Smiih v. Richmond Mem Hosp., 416 S.-.2d 689

691-694 (Va. 1992) (holding that the transfer provisions ot

Subsection (¢) apply regardless of whether the individual initial],

presented with an emergency medical condition, as long as he had an

unstabilized emergency medical condition at the time of transfer)

ly

provide treatment such that “no material deterioration

of the condition is likely to result from or occur during

the transfer,” 7.e., “the movement * * * ofan individ-

ual outside a hospital’s facilities”) (emphases added).

These are questions that would benefit greatly from

HHS’s expertise and experience, and from public com-

ment during a rulemaking process, as HHS reconsiders

how best to effectuate Congress’s intent. Accordingly,

the prudent course would be to deny review at this time.

3. Forgoing review is appropriate for additional rea

sons as well. First, the court of appeals’ decision is in-

terlocutory. The court reversed the district court’s

grant of summary judgment and remanded for further

proceedings. Pet. App. 28a. If respondent prevails on

remand, petitioner will be able to raise its current con

tentions—together with any other issues concerning the

application of EMTALA that may arise as a result of the

additional proceedings on remand—in a single petition

for a writ of certiorari. See Major Le aque Baseball

Players Ass'n v. Garvey, 582 U.S. 504, 508 n.1 (2001)

(per curiam),

Seeond, this is an atypical case. The hospital’s al

leged EMTALA violation occurred before the regulation

at issue was promulgated. The court of appeals declined

to defer to the agency’s regulation on that independent

basis. See Pet. App. 19a-20a. And while that ruling was

wrong, it does not independently warrant this Court’s

review. See pp. 21-22, infra. In addition, the plaintiff in

this case is a non-patient, third party. See 42 U.S.C.

13895dd(d)(2)(A) (providing private right of action for

“lajny individual who suffers personal harm as a direct

result” of the hospital’s EMTALA violation); 1985 Hous:

Report, Pt. 3, at 6 (explaining, prior to the 1986 enact

ment of EMTALA, that the proposed private right of

()

action is being amended to make clear that it authorizes

only actions “brought by the individual patient who suf.

fers harm as a direct result of [aj hospital’s failure to

appropriately screen, stabilize, or properly transfer that

patient”). The court of appeals nevertheless concluded

that respondent had standing to sue under EMTALA.

Petitioner does not ask the Court to review that deter

mination. But that is a threshold issue about respon-

dent’s ability to invoke EMTALA at all, and it could

color consideration of the principal question on which

petitioner does seek review.

Finally, the practical consequences of denying review

while the agency engages in further rulemaking are

likely to be minimal. In the almost 25 years since

EMTALA was enacted, only three courts of appeals

have directly addressed whether LKM'TALA’s coverage

continues after a hospital admits an individual in good

faith as an inpatient, and only one court of appeals—the

Sixth Circuit in this case—has addressed HHS’s regula-

tion interpreting KM’TAL.A’s stabilization requirement

as applied to inpatients. Whether there is FMTALA

liability or not, hospitals have an incentive to furnish

appropriate treatment to individuals who have been ad

mitted as inpatients. State tort law could ordinarily be

expected to provide a remedy to an inpatient for negli

gent care. See, e.g., Bryant, 289 F.3d at 1169; Bryan, 95

F.3d at 351-352; 68 Fed. Reg. at 53,244-53,245; 73 Fed

Reg. at 48,656. And hospitals with emergency depart

ments participating as providers under Medicare—the

category of hospitals to which MMTALA applies

are independently required by federal law to have a pro

cess in place that identifies patients who are likel)

to suffer adverse health consequences upon discharg

if there is no adequate planning, and to provide a d

2]

charge plan where appropriate. See 42 C.F.R. 482.43,

489.24(d)(2)(i1i); 68 Fed. Reg. at 58,244-53,245. For

these reasons, and because Thorton’s rather strong dic

tum, on which the Sixth Circuit relied in this case, ha

been extant for the last two decades, petitioner’s sug

gestion (Pet. 9-10) that the decision below will hav:

“significant ramifications” for hospitals in the Sixth Cir

cuit appears to be overstated

C. The Retroactivity Issue Does Not Independently War

rant This Court’s Review

[he court of appeals also held, in the alternative, that

it would not defer to HHS’s 2008 regulation because it

was promulgated after the conduct at issue in this case

and is impermissibly retroactive. Pet. App. 19a-20a. A

petitioner explains (Pet. 21-22), the court of appeals’

ruling on the retroactivity issue is in error and is con

trary to this Court’s decision in Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 744 n.3 (1996). In Smiley, the

Court explained that, “|wjhere * * * a ecourt is ad

dressing transactions that occurred at a time when there

was no clear agency guidance, it would be absurd to ig

nore the agency’s current authoritative pronouncement

of what the statute means.” /bid. Respondent does not

disagree, suggesting only that the 2002 proposed rule,

which would have applied EM'TALA to some inpatient

hould be treated as a “prior agency interpretation

Br.in Opp. 12. An agency proposal soliciting comment

does not constitute “clear” agency guidance

[In any event, the court of appeals’ error should hav

little impact beyond this case. HHS’s regulation wa

effective November 10, 2003, and there is a two-vear

statute of limitations on EM'TALA claims. See 42 U.S.¢

L395 dd(d)(2)C( Presumabl\ any time!

MMTALA case currently pending in the Sixth Circuit

involves conduct that postdated HHS’s promulgation otf

its regulation. Further review of |

ndependently warranted

t!

CONCLUSION

,

wal petition for a writ oI certiorari S!

)

vt